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tv   Supreme Court Landmark Case Slaughterhouse Cases  CSPAN  March 30, 2016 10:00pm-11:33pm EDT

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hearings can provide a sufficient basis for determining if a nominee merits a seat. >> the senator fischer realized that any benefits of ordering an opponent are not likely to outweigh the damage done to their institutional standing. ideological opposition to a nominee from one end of the political spectrum is unlikely to help generate similar opposition to later nominations from the opposite end. announcer: those of us with the programs featured this week on c-span. tonight, our original series lead marquesas is next. then, obama hosts the annual easter prayer breakfast. and hillary clinton campaigns in new york city.
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now, landmark cases. tonight looks at the 1873 slaughterhouse cases. >> lead marquesas, c-span special history series produced in cooperation with the national constitution center exploring the human stories and constitutional dramas behind 12 historic decisions. >> number 759, ernest miranda petitioner versus arizona. >> argument 18, rule against -- roe versus wade. >> quite often, famous decisions took to that the court
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be quite unpopular. >> let's go through a few cases that illustrate very dramatically and visually what it means to live in a society of 310 million different people who helped stick together because they live in a rule of law. landmark cases. of series will look at some the supreme court's most interesting and impactful historic decisions. tonight, we are talking about a case you might not know very much about. it is called the slaughterhouse cases. it was the first time that the supreme court reviewed the newly enacted for to them in the to the constitution. i may introduce it to our guests to tell you more about the history and importance.
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he has argued more than 75 cases. welcome. michael ross is a legal historian and he is the author of a biography of adjusted he will be hearing about, samuel freeman miller. thank you for coming. is this on our list your co- why does it matter? >> this case definitely belongs on any list. it is the is that first opportunity for supreme court has to interpret the 14th amendment. the reason that is so important is that the 14th amendment is what essentially guarantees the bill of rights eventually and constrains the actions of state government. if you think about the bill of rights, the first 10 amendments, all of them by their terms were
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really designed to restrict the federal -- in what it did do to people in citizens in the united states and it is really only at the point that we go through a or people finally realized that it is not just the federal government have to be concerned about, but the state governments. addingere is a process the 13th, 14th, and 13th amendments. they restrict the states, they are tremendously important. the slaughterhouse cases the first time supreme court interprets the 14th amendment. >> use of this decision influence the course of race relations for a century and it continues to shape constitutional law today. make the case. >> in the slaughterhouse cases, the key clause is the privileges or immunities in that question as to what that meant and whether or not it actually applied the bill of rights.
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in the slaughterhouse cases, the supreme court goes down the road. it becomes a long and tangled story. this is also an export narrowly important case because it doesn't end in a peace treaty. there is no signing on the deck of a battleship like at the end of world war ii. it takes a long time before congress decides what their terms are going to be. and many people see the 14th amendment as that peace treaty. agree to these terms and we will allow you to have a restored place. >> the slaughterhouse cases are about butchers. we will learn more about how this case began and how it made its way to the court.
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we will learn a little more about the 14th amendment. if you watched last week, we did the dred scott decision and learned that the 13th, 14th, and 15th amendments were a remedy for the decision. it was a terrible decision made in the dred scott case. let's listen to senator patrick leahy of vermont talking about the 14th amendment and why that was such an important thing for the u.s. let's listen. >> it's interesting. the 14th amendment is 150 years old. >> what you call it that? >> we had founding fathers in the original but then looked at that series of amendments. it's like the u.s. became more aware of what they are and more aware of the fact slavery ending
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and so on -- we had to treat all people the same. you know and i know having said that, it took a long, long time -- and some places in this country, it's still going on -- but it was the second founding. it was the second coming of the u.s. >> senator leahy talking about why these amendments are the second founding of our country. let's look at the text of the 14th amendment. just so you understand the legal framework. it says "all persons born or natural light in the u.s. and subject to the jurisdiction thereof are citizens of the u.s. and other state wherein they reside. no state should make or enforce any law which shall abridge the privileges or a new deed of citizens of the u.s. nor shall any state deprive any person of life, liberty, or property without due process of law nor
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deny any person the equal protection of the law. you heard our guests talk about the privileges and immunities clause. i'm going to ask you to please set the stage for the passage of the 14th amendment. after dred scott, the country fight the civil war and this amendment was passed in 1868. tell us how it came to be. >> 20 civil war ends, there is no peace treaty. there is a long debate about what lincoln would have done with reconstruction had he lived. demand put in charge is andrew johnson. andrew johnson allows the legislature to be elected throughout the south immediately after the civil war without giving african-american men the right to vote. the immediately begin passing a series of laws known as the black codes. the black codes were laws that applied only to black people.
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they said black people cannot meet in groups of six after sundown. it had even more ominous laws attached like each january, african-americans had to produce a document showing where they were going to work or the coming year and if they cannot produce that document, they would be fined for vagrancy and sentenced to work on a plantation to pay off the fine for the coming year. the core of the black codes was to restore slavery in form if not in law. the black codes shock a lot of people in the north because it seemed like after over 700,000 americans dead that the war meant more than that. when congress finally came back into session, a long struggle goes on with president johnson
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as to what is vision of reconstruction would be and what congress says it would be. eventually out of the joint committee of reconstruction comes the 14th amendment, which will be congress's terms. included in the language you read are lots of phrases like the equal protection clause that are aimed directly at the black codes. if you have a law that says people cannot be in groups after six after sundown, great, but it has to apply to everyone. >> what can you tell our audience about the view of reconstruction and these amendments on southerners who felt as though they were in an occupied land? >> you certainly had in the wake of the civil war this situation where you have some newly freed
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slaves and freedmen. you have some people coming down from the north to take advantage of the reopening of the south. the last thing they want to see is federal authority being imposed on them from washington in part because federal authority is designed to protect the newly freed slaves and apart because they had just fought a war where they were trying to vindicate states rights and although they lost the war, i don't think their hearts and minds were changed in the process. part of what makes them so controversial in the south about the 13th, 14th, 15th amendment is it is this idea of asserting the federal government will on all sorts of issues that have traditionally been left to the state government. host: our story takes place in
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the reconstructed south of louisiana and the city of new orleans. was new orleans typical of the south or were the special conditions down there? michael: new orleans was a complex place but it is a place that everyone is looking to see where reconstruction can succeed. it had the class of very well educated former free persons of color that came out of the french and spanish culture. they are people who can put the lie to confederate claims that african-americans are too uneducated and ignorant to serve in office. in new orleans, there is all kinds of tamult. all kinds of what people who are extraordinarily angry that by 1869, you have african-americans serving on juries, the police force, african-american
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detectives solving high-profile crimes. host: the past couple weeks, there are some pretty big characters. there are two in this particular story but there are groups of people who are part of this scenario. one of those is the butcher's benevolent association and various other groups. can you tell us a bit about who they were? paul: at the time, you do have a dynamic where the slaughterhouse is at this point are in new orleans proper and there are a number of butcher's and they have this tradition is being involved in this trade that is
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part of their identity. is a such the stage for the idea that you have these slaughter houses near the large population centers in new orleans and anybody who has read the jungle knows that slaughterhouse is even 60 years later were no picnic. at the time, and will and had a reputation where you don't want to be there in the summer because you might leave in a pine box. michael: a metropolis of america some people called it. host: when they file suit, -- i would like to have a brief biography.
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they hire as their attorney this person by the name of john campbell. who is a john campbell? michael: john campbell, i often call the people genius of the 14th amendment. john campbell is a former u.s. supreme court justice in the majority in the dred scott decision but he's from alabama. 20 civil war breaks out, he resigned to join the confederacy where he becomes jefferson davis'assistant secretary of war. he says the number of things that do not hold up well and when robert e. lee at the end of the war are proposing the confederacy employed black troops, campbell is completely against it. he is arrested after the lincoln assassination because they think
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he has a part in it and he is held in jail for months and he comes out very embittered and will make his legal career in new orleans after radical reconstruction begins fighting the reconstruction government. everything he is doing is being done to fort -- thwart the biracial reconstruction of louisiana most that he says things like we have africans in a place all around us and every day, they are bargaining away their duties. he says anything, even violence, is better than the insanity that seems to prevail. host: you wrote the book about justice miller. he is considered one of the court's most important justices.
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paul: the slaughterhouse cases has such a tremendous impact on the 14th amendment that anyone who issued that opinion will get credit. he is also a force. miller is this burly, john goodman-like character. he prides himself on cutting through the bs one lawyers go on and on. he is like, get to the point. he says any point, some point. anyone who dealt with him throughout the gilded age -- it was just a force of nature when he entered the room. host: because you have been in front of these justices come i would like to have you think about this dynamic. here we have a former supreme court justice who resigns to fight for the confederacy arguing before his former colleagues and here is another
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dynamic. justice miller loathes john campbell. paul: this is something we have not seen in the modern era. for someone to leave the court and appear in front of the court, the justices will decide these cases and decide been based on the view of the laws. you cannot help but imagine the personalities have something to do with this. when you have someone arguing the case that one of the justices has an intense personal dislike and political dislike, the view of leaving the court to join the confederacy is some ring justice miller cannot really forgive. to be hearing this argument from that particular advocate has to change the dynamic in a way that that justice is processing the
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case. host: time to learn about what got this case into litigation. we are to visit new orleans in a piece of the video. you're going to learn more about the conditions that people were protesting in new orleans that led to the creation of this communal property, the slaughterhouse landing company that the butchers were protesting. let's watch. >> with all of the refuge, the human and animal waste, the livers, the hearts, with all of that being dumped in the river, it's no wonder this city was famous as a city of the dead. by 1860, there would have been at least 84 slaughterhouses in this general area.
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the entire place was one royal stench. they were coming from texas or the prairies of louisiana. an estimated 300,000 heads of cattle and pork were dropped off and delivered at that landing every year. that would be a separate group and they would stampede them through town to all of these butcher shops. then in this direction, with what was called the nuisance war. that is where all of the
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entrails and livers were put into the river. less then two miles down river, there were the intake pipes for the town's major waterworks system. not surprising, a lot of that endless silt had collected around those pipes. the people who lived near here were pretty much up in arms and they were trying for many years prior to the enactment of the slaughterhouse kay's to have these meat industries centralized in one location. that was basically the impetus for the enactment of the slaughterhouse case. host: i like to tell you about how you get involved. you can call us and all of your comments or questions will be on about this case. we will go to calls in about 10 minutes. or you can send us a tweet. i can follow your comments and questions as they come in.
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there is a conversation started on our facebook page. some of those questions will make it into those discussions. we just heard about the deplorable conditions. how did it come to be citizens saw redress from their legislature? michael: when you pump water into the water supply, there would be all kinds of pieces of
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entrails floating in it. there have been repeated efforts to move the butchers either across the river or down below in this city and it happened again and again but the butchers are a large group that managed to weasel their way back into the city every time. the butchers are very tightknit. they text the monopoly, keep other people out of the business, and they fight back. the regulations always fail. the butchers for most of new orleans history are not a well-liked group. people want the meat but they see the butchers as people often putting their health in jeopardy. what happens is the legislature during reconstruction decides that their strategy to lure people to the republican party so it could survive is that they would get done a number of
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things they had always wanted done, including moving the slaughterhouse out of the city and fixing the levees and doing all of these things. in the process, they might lure businessmen to the republican party willing to put racial animosity aside for economic progress. they really think the effect will be something the community will rally around and say i didn't like this legislature but they are getting good things done. that's not the way it will turn out. host: we are to next take you to the legislature where the spews of legislation was brought. it was a legislature in the
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reconstruction south. particularly louisiana. there are racial politics attached. let's watch. >> we are in an area of the museum that explores radical reconstruction in louisiana. we are looking at a ballot box from 1875. it is a unique object and it represents voting rights in louisiana during reconstruction. after the civil war, and you group of people was able to vote for the first time. -- a new group of people with able to vote for the first time. you're looking at a poster that shows him of the african-americans elected into
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the legislature doing radical reconstruction. the louisiana state legislature passed the act. one of the most interesting figures in this picture is oxford dunn, the first man of african descent elected lieutenant governor of the state. he served for several years. his replacement went on to serve for 35 days as the governor of louisiana, the first african-american to serve as governor of a state. about three months later, the supreme court handed down the slaughterhouse verdict. the racial composition of louisiana state legislature changed during reconstruction ended was also a time when houses of northerners moved to the south. many of the businessmen who wanted to establish the slaughterhouse were from the
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north. what you're looking at here is a carpet bag, typical of the luggage northerners would have brought with them. the term carpetbagger was used by many southerners. they saw northerners coming to the south and ask avoiding the not -- and exploiting the natural resources. host: the louisiana legislature with african-american members passes the slaughterhouse law, which will require the creation of the slaughterhouse company. the butchers would be required to do their work there. i am going to take a caller. hello, roberto. caller: hello. i want to commend c-span for this wonderful series. i find it very educational. historically in the 1800s, white woman were considered citizens but not allowed to vote. my question is, is the right to vote a privilege of national citizenship? thank you. host: thank you. paul: the 15th amendment is passed specifically to deal with the issue of voting. voting rights are not conferred by the 14th amendment and not conferred to women and just because they are citizens of the u.s. under the privileges or immunities clause. the right to vote is enshrined
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in the 15th amendment and is not extend to women. we have to wait until the 19th amendment until that is protected. there is an interesting aspect of the right to woman protected by the privileges or immunities clause. one of the cases that follows immediately after the slaughterhouse cases it involves an effort by a woman lawyer in the state of illinois to get admitted to the state bar of illinois and her argument was the ability to be an attorney
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and practice before the bar with a privilege of immunity or citizenship. the supreme court applying some of the same reasoning it would adopt in the slaughterhouse cases rejected that argument and said a female attorney did not have the privilege to practice law. host: kay is our next caller in louisiana. caller: i would like to ask michael white so many of these originated in louisiana. michael: new orleans and louisiana are central to the reconstruction story. you not only have the afro creoles, who make reconstruction working the best chance of new orleans, but you have 10,000 former slaves that move into the city and all of these extra
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confederates. most of the south was destroyed and they all moved to new orleans as well. you have other people trying to deny them. louisiana will have the democratic arm of the party. amidst all of this, three of the greatest of the 19th century cases emerge. : outstanding supreme court lawyer. you said earlier that justice
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campbell argued in the -- i mayhouse cases have misunderstood you about how many justices did that. is he argued the case before the supreme court after he stepped down the supreme court. he represented puerto rico. it may have died right before the decision was handed down. and i correct? correct -- am i cor rect? this is really one of the last examples of someone stepping down and not serving as a senior justice. justice o'connor, justice souter, they no longer serve on the supreme court but they still actually sit from time to time on the courts of appeals.
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it has been a while since we had a justice who not only steps down but actually sort of retires from article three entirely, or is even in a position to argue the cases. : if you are new to the c-span call-in experience, and i know a number of you are watching for the first time tonight, we don't answer your call until just about time to put you on air. we have another hour ahead of us. lots more to tell you in the story of the slaughterhouse cases. time,eresting period of both civil war era and the reconstruction age, and what life was like in the south. byt, we're going to return video to the city of new orleans. the legal case centers on the creation of the slaughterhouse company.
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>> this is the general area in st. bernard parish where the crescent city life stock landing and slaughterhouse operations were located. were standing on the levy in the rivers behind me. it goes back at least a quarter of a mile, long city blocks. on the other side of the man-made levy that we are this side of the levy is called the bad sure. you can still see it down here. probably some remains of the cattle landing. there was a big cattle landing where they were unloaded and then they were herded into the slaughterhouse. there was also a rail line that would bring cattle in, or bring the process and packaged me out.
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this is the area where all of the butchers in the city of new orleans would have had to operate. they would rent stalls, lease stalls. butchers, whonch had ethnic groups in the area of france. they didn't want to be pushed out. they didn't want to be taken over and centralized even though the understanding was that they would have to be offered a butchers stall at market rates. you couldn't play favorites. they decided to carry that case forward. of course, the rest is constitutional history. host: when they took the case to the louisiana courts, what was the heart of their case? michael: the heart of the case initially was working the claim that they are being denied equal
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protection. where the case really gets interesting is where john campbell and the other lawyers who are teamed up get involved. they see an opportunity in the 14th amendment, and amended that the x confederate press had held their knows about and said, this is an amendment that is going to force federal power upon us. suddenly, they saw an opportunity in the broad language of that amendment, which didn't say anything about the race to which it would apply to, to use an amendment which most people initially hated on the side of the butchers, arguing that they were being denied equal protection. and, that they were being denied the privileged immunity to practice their vocation free from government intrusion.
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campbell even went as far as to argue that it violates the 13th amendment, that requiring butchers to slaughter in someone else's slaughterhouse constituted slavery, was involuntary servitude. you can see campbell kind of laughing his evil laugh. that mostis amendment ex-confederates had seen as hoisted upon to fight the biracial legislature. now, this is all being packaged as a way to thwart the legislature. the butchers become local celebrities and all of the papers are cheering them on as the slaughterhouse litigation goes forward, and they are following day today. host: here is the irony -- the people of new orleans were suffering, had cholera epidemics
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, and yet they were willing to cheer them on. that is in irony, and the good professor made reference to the people of new orleans to could put race aside. not everybody fit that description. over time this is less about the , butchers and more about the fact you have this pass of -- have this passed by the biracial legislature and there was a sense people would benefit from this were african-americans , and also carpetbaggers, who were coming down and were going to provide some of the financing. there was a real opportunity to turn something that the people of new orleans had been clamoring for four decades and turn it into something that could be whipped up into something that was opposed.
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host: what happened in the louisiana courts? michael: it is a very complex situation. you had seven district courts. four of which held civil cases. there, there were two judges known to be sympathetic to campbell. there were three people who had attempted early on to be kind of a conservative republican, but he had grown disaffected when african-americans demanded that the schools being integrated. he turned, and now sides with campbell and the people fighting the biracial legislature. at the lower level, you have two judges who are going to constantly issue injunctions on the side of campbell. stopping the slaughterhouse people from having to go to the slaughterhouse, etc.. the louisiana supreme court were all died in the wool proponents of reconstruction and they reversed the injunction. this goes on and on not just in
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the slaughterhouse litigation. it's in the project where they want to build a canal from the mississippi to the gulf of mexico. it's a strategy where campbell and his allies are trying to discredit this government, claiming everything is the result of corruption. it works very effectively. it ties things up for a number of years. get anything done. they can'tget anything done. finally, what the legislature does is say they cannot take this anymore and create a new district court. they say, this is the only district court that can issue injunctions and they put a republican judge in that court , and from then on it shuts out , the lower level courts and campbell does not care anymore. he has moved his whole chain of argument to the federal courts using the 14th amendment, and now he can make the same claims in federal court that he had done successfully in state
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thwarted byhe is the creation of the new eighth district court. host: let's take a call from joe in minnesota. caller: good evening. i would like to thank you for doing this series. it is incredibly wonderful. my question is how did the 13th past whenactually get there were 23 senators excluded from the voting? host: can you take that? michael: what happened is the congress makes it a requirement that the state legislatures have to ratify the 14th amendment in order to be readmitted to the union, in order to once again be allowed to have federal
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representatives in the congress. there is the question -- there is always the controversy that the congress that passed the amendment was not a fully staffed congress. i think that is solved by the fact you needed a three quarters vote of the congress and it didn't specify that all states had to be in place for that to happen. host: can you tell us why the supreme court decided to take this case on? how did it have standing? it was decided by the louisiana supreme court, so there was not a conflict between states. paul: you still have the federal issue in the case and that is how it gets to the supreme court. that is part of campbell's strategy. frustrated in the louisiana courts where he knows he is really not going to get the relief that he wants, he understand that if he can provide a federal issue, that he
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can get to the supreme court of the united states. that is where the 13th and 14th amendments come in, as really not just something that works in the sense of taking these provisions that were clearly designed to foster reconstruction and protect african-americans, and using them as a weapon. these amendments are designed to be a shield for african-americans in the reconstructed south and using , them as a sword to cut down their newly enacted legislation. that is something where he also has the insight. he would know it, being a former u.s. supreme court justice, that these federal claims are a ticket to the supreme court review. host: we are going to have to tell people about the supreme court this landed in. who was the chief justice? michael: simon chase.
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i am having a meltdown on live tv. justice is simon chase, who doesn't have long to live. then there is the court, made up of lincoln and grant appointees, largely. nathan clifford from the buchanan administration. this is a court made up of justices appointed by lincoln and grant. you would think that a court made up of justices appointed by lincoln and grant would all be people sympathetic to reconstruction. it doesn't turn out to be the way. there is stephen j. field and joseph brownlee and others, soured on reconstruction. it would be a very divided court for that reason. when lincolnthat made these appointments to the supreme court, he had run a litmus test. that was whether or not they would support the union. he didn't delve into their positions on other issues. correct? michael: correct.
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he is in the midst of a civil war. he has done all kinds of controversial things from suspending habeas corpus to the blockade, etc.. he wants judges that he is convinced will uphold his war powers, and that is the litmus test. there are economic issues and everything, but those are secondary. he appoints mostly republicans, but he even appoints stephen j. field, a unionist democrat. he said he would be a staunch supporter of your war powers. he gets what he asks for. the court is, at least during the war, going to uphold lincoln's positions and after , the war, some of them are going to turn and declare some of the things done, like the legal tender act, and the arrest of some people by military
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tribunals as illegal. host: we have the names of the justices on the screen. in one of the books, it is described as an undistinguished court. michael: i would not agree. when you read the papers of these gentlemen, there are a few blowhards. no wes swain -- swayne is a sleepy experience but with miller, field, bradley, you are dealing with justices of great intellect. i don't always agree with them, but these are serious individuals. host: harold is watching us in omaha. you are on the air. caller: thank you. i don't mean to denigrate the importance of the case. weren't there also other cities across the country that have -- that had the awful problem and time took care of them?
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had ana, nebraska, we awful number of slaughterhouses. time addressed that. michael: i do know that what -- i don't know the story about the time addressing these problems. but what i do know is that what they were doing in new orleans was modeled on what other cities had done, most notably new york, most cities in europe of having , a centralized slaughterhouse. some of these were municipal and not put together by private investments. new orleans did not have any money during reconstruction, and having private investors building a needed slaughterhouse and giving them a 25 year franchise to charge rent was not unreasonable, given the economic situation at the time. i don't know what happened if you just had a laissez-faire
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approach, where eventually something gets. i think with many people dying from cholera and yellow fever, not that slaughterhouses were the cause, but they didn't know that. it was time to act. paul: the point i would make is if you just look at this as being a case about the slaughterhouses and legislative efforts to deal with them, you might not think this is that big a deal. but come on the other hand with , a number of the cases that will be discussed in this series -- you can look at the miranda case just about being just just about criminal arrests. what makes these cases significant is they go all the way to the supreme court and the supreme court addresses something that has profound and lasting significance. one of the things i want to share is this is not lost on the justices deciding the case. this is not a case that strikes them as a sleeper, or just another case about how you deal
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with awful, or some other sanitation problems. justice miller, in his own "noion, says this -- question so far reading -- so far-reaching consequences. bearing oft on their the relations in the united states, and to the several states to each other, and the citizens of the united states, have been before this court." he is essentially starting out by saying, this is the single most important case any of us have heard, decided. host: mary is watching in corpus christi, texas. caller: hello. my question is a directed to professor ross. who is attributed to the world -- the well-educated african creole community and also to the
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education of oscar, dunn, and pinch back. michael: what had happened in new orleans is there were a few public schools before the civil war, but the afro creoles were not schooled there. some sent their kids to the north and in paris. it was all done from a francophone perspective. i wanted to get another point in to this caller, two times ago. in omaha, things get solved over time because it's an efficient place. in new orleans, if somebody with power doesn't act, nothing gets done. i love you and i have your back but if the legislature didn't act, there would still be butchers putting things in the river by the water intake pipes. host: tim, you are next.
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caller: my question is, didn't -- didn'thave enough they have enough butchers? what was the reason for butchers from the north to go down to arkansas? host: money to be made? michael: not everybody involved was a northerner. were, they were investors. there was not any capital in the south after the civil war. the economy was in ruins. in order to get anything built, you needed to bring in northern capital. when they needed to bring -- to build the railroads they bring , in henry mccone. you needed outside money.
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confederates -- the ex-confederates will portray this, and this will get lodged in the american memory that these are all scoundrels down there to get elected on the votes of ignorance and use their position to rip off the south for their benefit. when you read the letters of carpetbaggers, many of them had an evangelical sense they were doing god's work and they were coming down to show the south a places done, to take they saw as a backward place and fill it with factories and public schools and to re-create the south in the north's image. for doing that, they are called carpetbaggers. they are seen as scoundrels. there are a couple scoundrels in the group. this is a gilded age and corruption is everywhere, but there is many of them who really think they are doing something important, and resent the notion
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they are just there to get rich. host: our next question -- joseph in wisconsin. caller: what happened to judge campbell? host: you are getting ahead of our story. we will tell you if you continue watching. thank you for the question. let me introduce judge campbell's nemesis, samuel miller. he was serving on the supreme court. he is one of the most distinguished members of the court. he also was important to this because he was assigned to write the majority opinion. we will learn more about his background in our next video. >> samuel miller moved here about 1850. a built this house for about $13,000 as a wedding present for his wife. samuel miller left kentucky because he did not believe in slavery. kentucky was a slave state and iowa was not. we have an article that
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references when mr. miller was a young man, his family owned slaves, and his friend was a slave, and his father beat the young child and mr. miller did not like that. so, he came here with his family and he freed his slaves. he actually had some of them working here for him in which he , paid them. the lee county historical society believes this would have been the dining room where he would have entertained political guests, lawyers, other judges. shape thehelped republican party. here is a copy of an article stating he went to the , republican state convention. they were electing officers and he was representing the first district. samuel miller had a successful law firm. he attracted national attention. he was appointed u.s. supreme
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court justice by abraham lincoln and was the very first appointed justice this side of the mississippi river. host: what is important to know about his background and the temperament he brought? michael: this is a man who married into a slave owning family. he was briefly a doctor and wrote his medical school dissertation on cholera. the treatments were barbaric, but he was one of the first to recognize that it had a connection with water. he hates being a doctor were all his patients died. in kentucky, he follows caches , and its when kentucky 1849 constitution, saddles slavery even more firmly on the
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state, he decides it is time to get out. , iowa and heeokuk , thinks it will be the next chicago. he becomes one of the founders of the republican party. throughout his career he is a , moderate republican. a staunch supporter of lincoln and eventually of reconstruction . and again, he is someone that puffing upe lawyers a case of ancient president. campbell's argument in slaughterhouse is exactly the kind of thing miller doesn't like. he says we know why these amendments were passed, to protect the free men. it was not to protect white butchers in new orleans from a health regulation. what today we would call practical midwestern thinking,
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he prides himself on. there is really a part of the case, his dismissing all he sees as puffery. host: can you tell us about the state of the supreme court? where did they meet? they met in the old supreme court chamber. this is long before they had their own marble palace across the street. the circumstances are a lot more modest. at this point, the supreme court arguments are often very well attended. these are also multi-day affairs. typically, the most important supreme court argument is still going to get 30 minutes a side. when the slaughterhouse cases are argued for the second time, it's a three-day affair. this is something where the justices allowed the lawyers a lot of air time to make their case. campbell not only is relying on
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the 13th and 14th amendment in a sort of audacious way, but he is drawing the court back to long-established british precedents. one of the things -- for a modern lawyer, it's hard to understand why this complaint about the butchers losing their ability to practice their trade and this company being given a monopoly is even a plausible claim, but campbell, to give him credit, does go back to these british common law cases. there is a famous british case that involves the crown giving someone in britain a monopoly over the distribution of playing cards in the entirety of england. the only person who can do this. there is a celebrated legal case. it says no, that is a monopoly
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derogationawful, and of the common law. the argument campbell is crafting is running right into miller's prejudices. he is relying on these old cases. he is making the argument that the common law made clear you have these kind of monopolies and the privileges or immunities clause of the constitution, it must incorporate the idea that i have a privilege to practice my trade, and the government cannot give that privilege exclusively to someone else. host: the questions before the court -- we have to explain the great irony of this is that this amendment to the constitution was one of three written to address the civil rights of black citizens in the u.s. after dred scott and the civil war. it was a case with white butchers that came to the supreme court that was the first challenge of the 14th amendment. first, does the louisiana court
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-- law, rather, create involuntary servitude? does it deny equal protection of the law? does it deprive individuals of their property without due process of law? again, the language of the 14th amendment. and finally, does the law violate the 14th amendment privileges and immunities law? -- immunities clause? those were the questions the court was asked. we heard john campbell the case on behalf of the butchers. this was with slaughterhouse cases, because there were a number of them all consolidated into one. michael: one of the lead attorneys is an interesting guy named thomas durant. once a slave owner, but that he becomes influenced by utopian socialism. what had happened is, he was in new orleans and had become kind of a radical republican.
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is there at the time of the 1866 new orleans riot, which is a moment when leaders of the afro creole community are surrounded by members of the new orleans police force, before reconstruction, made up of henry hayes and his brigade who had fun at gettysburg under lee. direct fleece and that has death , and moves to d.c. and becomes a lawyer who argues in front of the supreme court. he becomes one of the key lawyers arguing on behalf of the crescent city livestock company. host: there were two defendants in the case, the city of louisiana and the crescent city livestock. anything important to know about those lawyers? matthew carpenter is knee-deep in the ratification
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debates. he is someone who knows the meaning of the 14th amendment. someone who knows the original .ntent carpenter would have been there as the sausage was being made. next caller from virginia. caller: my question is for either one of the scholars or both of the scholars. the klanon is, is involved in any way in this case? michael: in louisiana, it wouldn't be the kkk, it would be the knights and the crescent city white league. there's a paramilitary group known as the louisiana legion. the way they are involved in this case is this is a full front assault on reconstruction lodged by the democratic party , politically, lodged by the
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the knightsodged by of the white camelia. they are killing people in the freed men and political leaders. then, there's campbell, who doesn't pick up a gun but picks up his legal briefs. it is campbell and a number of other lawyers. they go to court. combined, it is a full blown , rule or ruin, massive resistance to reconstruction. host: so, you said the case had to be argued twice. why is that? why does that happen? paul: the first time it is argued, one of the justices is effectively indeposed. -- indisposed. you have nine justices but one of them is unavailable, and so the court is not in a position to decide the case. i think they understand, as i read before, they had the understanding that this was a momentous decision. you only have one chance to have the first chance to interpret the 14th amendment to the constitution.
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they need to get a full court in order to decide the case. they slate it for re-argument and have this remarkable argument, and just to underscore what you said. if you think about the four issues that are before the court, it is really the heart of the reconstruction amendments. you have the 13th amendment and then you have the three principal provisions of the 14th amendment in section the due one. process, equal protection clause, and the privileges or immunities clause. and i think, certainly to lawyers in present day lawyers, you think the slaughterhouse case as the great cases about the privileges and the immunities clause. because of the way they decided it, the last case, functionally, about privileges or immunities clause. campbell had it all on the table. he didn't leave anything to chance. he had the due process and equal protection clause also available. it is one of the interesting, sort of, products of history that justice miller and his
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decision focuses on the privileges or immunities clause, says the other two have been -- have not been hardly pressed before the court. he says very little about the clauses. part of the legacy of the slaughterhouse case is -- it is not just important for what it decided about privileges or immunities clause. it is almost more important for the sort of impetus that it gave for subsequent litigants and subsequent justices to breathe even greater life into the due process clause and the equal protection clause than the framers of the 14th amendment may have intended. host: david in eden prairie, minnesota. what is your question for us? caller: equal protection is based in large part on a classification of people, be it race or something else. is the only argument the butchers were making that their classification was based on being butchers?
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paul: i think their equal protection argument was principally based on the fact that the opportunity to be a butcher should have been been open to all. it was a classification in a sense. there were certain people who were in, certain people who were out, and i think, in that sense, it is a classic non-suspect class with current lawyers. with current lawyers we call it , classic non-suspect class, equal protection clause argument. that was coupled with a due process argument. that was really again what current lawyers would call a substantive due process argument. they were not arguing that somehow you could have the exclusive monopoly for butchers across the river if only you gave better notice and an additional hearing. they were saying this was not the kind of statue that the state could pass at all. that it violated, sort of, a broader concept of due process. something that i think, you know, viewers should stay tuned for in the lochner case when that is discussed.
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that becomes something that is adopted not by a majority of the court for a period of the court's history. so all of these arguments are made. as i say, ultimately campbell focuses and justice miller , focuses on the privileges or immunity clause. host: do you have something you wanted to add? michael: no, i was thinking about the equal protection claim. i always thought the butchers were also arguing that they weren't being allowed to use their property because they had been slaughtering on property. suddenly they have to go slaughter someone else. with that fit the model that you -- paul: that would be consistent with the model. i think the critical thing, and this really feeds into justice miller's understanding of the equal protection clause at the time that he is writing the slaughterhouse cases the one , thing they were not arguing was that this law operated anything like the black codes. it was not like the only african-african-americans and not whites could get involved in
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this monopoly butcher trade across the river. it certainly was not something where this was being secured only to whites. i think, you know, justice miller -- and this is not entirely consistent with the way the supreme court subsequently interprets the equal protection clause -- but i think he has in , mind very much the purposes behind the equal protection clause and the fact that it was designed not just to make everybody equal in every classification, but to suggest that you could not have things like the black code. michael he says that is the one : pervading purpose of the equal protection clause. host: next is a call from chuck in renton, washington. caller: hello. my question is kind of a factor. it has been brought up obliquely in the issue around the carpet baggers. during that period in american history, the false civil claims act came to pass. the scoundrels were not just
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southerners that preyed upon the south in the reconstruction period. did that play into the dilemma that was faced in cultural terms and also in terms of the law down there? did any of it come before the u.s. supreme court in that time? michael: i am not sure i understand the question. paul: certainly, to the extent that the question is alluding to the fact that you have not just the idea of the carpetbaggers coming down there, but there were efforts at the same time to project federal power to protect everyone, but particularly the recently freed slaves, from being subject to violence by others down in the south. i mean, that is a part of this period of constitutional history. there is the cruickshank case, that hopefully we will get a chance to mention at least in passing, that was involved in the application of one of the civil rights statues to a situation also coming out of louisiana. those cases also came to the
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supreme court at the same time. if you want to put a slightly broader historical context here, what the supreme court is wrestling with during the period is not just this particular case and what to do with the reconstruction amendments. i think they are also dealing with the reality that during the civil war, there was an opportunity to extent federal power in ways that the union had never seen before. i think that reconstruction was an effort to use cobo in the absence of a war, a particularly -- a similarly broad scope of the federal power against the states. what you start to see in this period is a reaction by the court that the pendulum has to swing back to the states. there cannot be quite this aggressive assertion of federal power. if i could just give you one statistic that really brings this home. in the entire period of our constitutional history, between
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the beginning of the constitution in 1789 and 1869, there were a total of four acts of congress that were struck down as unconstitutional. yet, between 1870 and 1875 there are six acts of congress that are struck down as unconstitutional. this slaughterhouse case, the cruickshank case, all of these can be understood as part of the supreme court sort of saying the pendulum really has to be swinging back. we cannot have quite this aggressive assertion of federal power. certainly critics are saying that the supreme court just lost their nerve. but i think that, you know, both sides, in a sense, can point to just the facts of what the court was confronting and how they resolve those cases and support their argument. host: to tie all of the cases together, if marbury-madison have not been decided the way it was, the court would not be
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ruling and declaring acts of congress unconstitutional? paul: it is good you brought that up. there were acts of the slaughterhouse cases that are a little like marbury. the genius of the marbury decision that chief justice marshall wrote an important decision. if he had come out the other way, it is not entirely clear the decision would have been enforced. he would have picked a major fight. there is a similar sense here with the slaughterhouse cases. if justice miller flips his vote and there is five votes the other way, and they start saying that all sorts of common law privileges are enforced by the 14th amendment against the states, then that sets up the federal supreme court as reviewing all sorts of state laws without really any text in the constitution to strike them down. i think, you know, no one will know what would have happened if the court decides the slaughterhouse case the other way. it would have been a very aggressive assertion of judicial
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authority to be sure. michael: miller says that. he says that this will make the supreme court and the federal judiciary the perpetual sense of the legislature of the states. chomping at bit is stephen j. field. he loves the idea. he loves the idea of a court that can use natural law principles to overturn in -- overturn in particular, , regulatory legislation. and you read it in his dissent. a lot of this is just like fidel miller. now we see what is coming here. it is coming from campbell. we know he is up to something nefarious. we know it is a pandora's box that we are not going to open. host: it should be pointed out was another lincoln appointee. angling for the democratic presidential nomination, but also somebody -- who is often an
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advocate of using natural law. good evening. this is a very interesting program. on had justice breyer recently talking about the u.s. supreme court, looking at certain rulings. thee louisiana follows the pulley on it code, i wonder if that was implicated in this federal, and how do courts deal with the napoleonic code versus mostly british common law. host: can you interpret that for the rest of us who aren't lawyers? one of the great things about having louisiana in the union is that not only this gives us a chance to go to new butans without a passport, it also means we have one of the 50 states that is really
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operating under a different rule of law as the state's rule of law than the other 49 states. the other 49 states are based on the common law. there are two great traditions in the law, the common law you trace to england, and then there are civil code based laws that are the norm in most of continental europe, and they traced themselves to france and the napoleonic codes, and wouldn't you know it, louisiana is actually a code state and traces its legal tradition back to a completely different tradition. that may have made a difference when the cases were being litigated in the louisiana state court. but by the time they get to the , supreme court, that is really not going to come into play. what really comes into play is a -- if you look at the majority opinion and the dissenting opinion -- is something that continues to be one of the major themes of judicial review today. which is, how much do you look
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into what the framers of the 14th amendment were trying to do, and what was their intent? and, how much do you look at the plain language of what they passed? that is really the debate here. what campbell in his argument and the dissenters are saying is, look, these words and due process, equal protection, privileges or immunities. they do not say anything about recently freed slaves. they seem like they are generally applicable to all. they seem to empower us to do this. miller, on the other hand, is looking at all of this and saying, look, this isn't ancient history. these reconstruction amendments were passed five years ago. i was around then. i know what it is about. i know these were protecting african-americans. they were not about protecting white butchers in new orleans. host: we heard it was a 5-4 decision. here is a paragraph we picked out.
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we have only 15 minutes left. we need to get on to the next part of the story. what happened to the butchers who lost the case? what was their history after? michael: well, even the unanimity amongst the butchers is breaking down during the case. at one point, the butchers benevolence association cut a deal with the crescent city livestock, where they kind of merge, and move into a new slaughterhouse. some other butchers are thinking we did not agree to move from , slaughtering in one monopoly to another. they keep the lawsuit up. that is why it is reaching the supreme court. after the case, the battles of the slaughterhouses and where the slaughtering should be go on
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and on, even after the reconstruction collapses and we are back into a legislature controlled largely by white democrats. the slaughterhouse situation continues to be a deeply contested one. host: robert in springfield, new jersey. you are on. caller: yes. i have two questions. the first one concerns with how when the 14th amendment was originally written, the privileges were seen as protecting while the equal protection clause was seen as protecting procedural rights. the question has to do with why clause being seen as just for procedural rights? and my second question has to do with how the supreme court, since the slaughterhouse cases, has ruled in protecting rights under the clause twice, and only
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in 1999 has that one remained on the books. my second question is, can our two guests here perceive any legal issues in the future that could be guaranteed under the privileges or immunities clause. i have a semester's worth of answers. paul: a couple of points to be made about this. one is that the privileges for -- privileges or immunities clause was principally designed to protect the substantive rights as you say. , i think the due process clause certainly if it was going to be , interpreted consistently with the due process clause of the fifth amendment, probably was envisioned as protecting procedural rights. the equal protection clause was clearly envisioned in avoiding classifications and differential treatment, exactly which differential treatment is something we are still fighting about today. i think that what justice miller does, and really it is very
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close to the passage that was just read, is that he says you are misunderstanding the campbell and dissenters. this is not about privileges or immunities. all of the various privileges or immunities that might have existed under common law, if you want to be protected under those, you have to look to your state government. the only thing that the privileges or immunities clause suck to protect our privileges that are uniquely privileges of u.s. citizenship, national citizenship, and miller does his best. he actually feels like, you know, he knows what he is doing. he knows he has just interpreted the privileges or immunities clause down to nearly nothing. he actually has a passage of his opinion where he is a little bit ashamed about this. he says there are some , privileges and immunities of national citizenship. but, they typically are things that were already protected by
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the provisions of the bills of -- of the bill of rights. you have the national privilege to go into congress and have your grievances heard. but that is kind of what the right to petition clause already says. it is really difficult to identify things that he has preserved. that is why, i think, that when most legal scholars look at the decision -- and this is something the dissenters were saying contemporaneously -- is that you just read the privileges or immunities clause out of the constitution of the united states. host: since the miller decision or the miller -- sorry, i have lost the words. miller's argument silenced the 14th amendment and the privilege of immunities clause of it, there are signs today the high court may be ready to reinvigorate the clause. here is a clip of retired justice john paul stevens on the 14th amendment privileges and
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immunities clause. we're going to listen and then wrap up our discussion here. >> the right of newly arrived citizens to the same privileges and immunities enjoyed by other citizens is plainly identified in the 14th amendment privileges or immunities clause. of greater importance, the 14th amendment citizen clause expressly equates citizenship with residence and does not tolerate a hierarchy of similarly situated citizens based on the location of their prior residence. let congress pass the statue does not alter our analysis. this court has consistently held that congress may not authorize the states to violate the 14th amendment. citizens of the united states, whether rich or poor, have the right to choose to be citizens of the state wherein they reside. host: that was john paul stevens on the 14th amendment's
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privileges and immunities clause. when we talk about the legal legacy of the slaughterhouse cases there are a number of , major cases in which it was cited. here are some of them. u.s. v. cruishank in 1879, plessy versus ferguson, and a -- brown versus board of education in 1954. loving versus virginia, 1967. and a case that paul knows well, mcdonald versus chicago. argued in 2010, and he argued that case before the court. what should we know about the legacy and the long tail of this? do you want to start? michael: i think paul is perfectly situated to answer. an mcdonald there were people , advocated that slaughterhouse be overturned, and the court had an opportunity to do that and didn't. paul: i am happy to start it off and turn it over to you.
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that is an impressive list. in some ways, it is the dog that didn't bark. many scholars believe it is the privileges or immunities clause that was designed by the framers of that provision to incorporate all of the bill of rights directly against the state governments. your first amendment right to free cities, which the supreme court did not get around to protecting against state government action until decades and decades later that was , designed to be extended to state governments by the privileges or immunities clause. that is the argument that many people have made. so, instead of having a citation of only a handful of cases if , the court had gone that route, there would be hundreds of cases, 20 or 30 cases every year, where the court would be applying the privileges for immunities clause of the 14th an amendment and not what , ultimately happened, which is
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the same provisions were incorporated against the states, but they were done through the due process clause which i think a lot of historians and a lot of legal scholars say really isn't faithful to the original interpretation of the constitution. just to give you one illustration of why that might make a difference is one of the things that is different about privileges or immunities clause the privileges or immunities clause from the equal protection clause and the due process clause is the privileges or immunities clause gives the protection to the citizens. the equal protection clause and the due process clause protect people. now, since the first amendment has been incorporated against state governments, then the people that are protecting by that have long been interpreted to include corporations. citizens, on the other hand, was interpreted by the supreme court a long time ago not to include corporations. these distinctions that legal scholars debate could actually have real world consequences as to whether the first amendment
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to the constitution applies not just to individual speech but applies to corporate speech when it is being regulated by the states. michael: i think we would be remiss in our closing minutes and i would get a lot of e-mails , tomorrow, if we did not mention there are some radical republicans that help frame the 14th amendment that said some things that suggest they met the -- they meant the privileges and immunities clause to include the bill of rights, people like jacob howard. at the same time, there is lots of evidence out there as well that not everyone who voted for the 14th amendment or the people that wanted to vote for the ratification of the states wanted it to be like that. had the framers wanted that to be the case, they could have just changed the wording in the 14th amendment and said the first eight amendments of the constitution that apply to the central government now apply to the states. it would be solved. instead, some talk about the amendment being protected and
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some do not. thousands and thousands of pages of people parsing what the framers of the 14th amendment have intended. there would be a lot fewer law professors had they were the amendment more clearly. i wanted to make sure that everyone out there watching who has written an article knows this is something to be taken very seriously. host: a quick question from you. caller: sure. i read mr. ross's book. justice miller was a proceed mediocre character. he said he was appointed to be a reliable republican, and that he was. we have had justices that were appointed that were not really legal geniuses like charles whitaker. are we making a mistake in judging the supreme court justices up today as if they were all legal geniuses or should we really take a look at
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them as maybe just a lot of the result of a political process? michael: i am going to let paul answer that. i disagree on justice miller. very intelligent, but definitely a political justice. paul: let me answer it this way. there is a lot that can be said about the slaughterhouse cases. i hope we conveyed some sense of how important these cases are jurisprudential -- jurisprudentially. with the 14th amendment, you have a fundamental shift where it is protecting individuals against the state governments and not just the federal government. it really is a central, central case to interpreting that amendment. a lot can be said about the decision, pro or con. the one thing that could not be said about the decision, at least at the time, was that it was just a product of politics, because it was a 5-4 decision. you had three republican
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appointees on both sides. i think that cautions against interpreting supreme court justices, old and new, as just sort of political actors or people who were appointed for a particular purpose and are not distinguished scholars. i mean, i make my living arguing in front of the justices. i really feel like, certainly the current group of justices, are real scholars, and they are really looking to decide the legal issues in the cases. i think that is borne out in the slaughterhouse cases. i will let the professors give a full rebuttal to defend justice miller. it is a scholarly and well written opinion. it has been criticized bitterly by scholars. i also think that it is a decision that really applied the traditional tools of at least looking at the intent behind the legislature. which is a debate we are still having to this very day.
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host: justice miller said he had aspirations unfulfilled for chief justice. 1884, he was even hopeful for the presidency. you write that he has been one of the key figures in the unraveling of reconstruction. does he deserve that legacy? michael: he does not deserve it. he did not intend it. when reconstruction collapses, and white supremacy is restored, african-americans could have turned to the privileges and immunities clause, and their bill of rights rights despite jim crow legislation. if you look for where that doesn't happen, it is the slaughterhouse cases. -- the opinions themselves, which is full of ringing language, you know that that is not what was intended. we had a caller that asked
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us, whatever happened to john campbell? john campbell suffers a serious accident in new orleans that makes it very hard for him to travel, but he wants to continue he continues izz his practice. after arguing a few more cases in front of the court that are anti-reconstruction, he passes. host: we have a viewer on twitter that says please tell us again where to purchase the book for landmark cases. i am looking, but can't find it. we have a small book that costs $8.95. it is available on our web site. if you go to it is written by tony mauro who has been covering for 30 years now. he did a summary of each of the 12 cases. it will help you with the background as we proceed. throughout our series.
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gentlemen, we are just about out of time. as we close here, just a quick summary why should someone care about the landmark case as being one of them the slaughterhouse cases? >> for they the same reason they should care about reconstruction. one of the areas that americans have a blank spot in their historical memory but the area that really defines the meaning of the civil war and the slaughterhouse cases were in part about defining the meaning of the civil war. >> i would say that i counted six of the cases that are left in the series that are major constitutional cases that involve not action by the federal government but action by the state government. the reason those are constitutional questions, the reasons the state government does something to you that you don't like, you can take it all the way to the united states supreme court is the 14th aument amendment and it is the very fact that crookshank is the first dice interpret that amendment that makes it such a landmark case.
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>> thanks to both of you for adding your experience to our discussion tonight. see you next week.


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